The Eleventh Circuit sided with the defendant, concluding that under federal law the free downloading of a mobile app on an Android device to watch free content, without more, cannot be defined as a “subscriber.”

Linn Freedman, who practices in data privacy and security law and complex litigation at the Rhode Island office of Robinson+Cole, wrote in a recent post on the firm’s Data Privacy + Security Insider blog the ruling is good news for companies that offer such apps, but bad news for plaintiffs’ class action attorneys.

“Generally, it supports the view that if a company offers a free mobile app to consumers, the VPPA [Video Privacy Protection Act] should not apply to the consumers who download and use the free mobile app,” she explained.

“This may mean that the companies can disclose the consumers’ information to third parties (subject to what they tell consumers in their mobile app privacy policy).”

However, the Eleventh Circuit’s decision is only binding on courts in Alabama, Florida and Georgia, Freedman noted.

“So it doesn’t have broad implications, but is supportive of the argument, which will be considered by other courts in the future, and may be relied upon by other courts,” she said in an interview with Legal Newsline.

Freedman points out that the Eleventh Circuit did not define the term “personally identifiable information,” which means the application of the VPPA is still “in flux.”

“We will see more clarity in decisions in other circuits, so companies may wish to proceed cautiously,” she said.

And so will plaintiffs’ attorneys, she said.

“It is definitely negative precedent that plaintiffs’ attorneys in class action litigation around the country will have to take into consideration when bringing or maintaining VPPA class action litigation against companies,” Freedman noted.

Congress enacted the VPPA in 1988 after a newspaper published a profile of U.S. Supreme Court nominee and then D.C. Circuit Judge Robert H. Bork, which contained the titles of 146 films he and his family had rented from a local video store.

Subject to some exceptions that do not apply in the instant case, the VPPA generally prohibits video tape service providers from knowingly disclosing, to a third-party, “personally identifiable information concerning any consumer.”

The act provides a federal cause of action for aggrieved “consumers,” allowing them to recover actual or liquidated damages of at least $2,500, punitive damages, attorneys’ fees and costs, and other appropriate preliminary and equitable relief.

Under the VPPA, the term “consumer” means any renter, purchaser or subscriber of goods or services from a video tape service provider.

In 2012, Congress amended the VPPA to reflect “the realities of the 21st Century.” Essentially, the changes allowed consumers greater flexibility to share their video viewing preferences, while maintaining their privacy, by clarifying that video tape service providers may obtain informed, written consent of consumers on an ongoing basis via the Internet.

However, the changes did not alter the VPPA’s definitions of “consumer” or “personally identifiable information.”

Freedman said the law, unfortunately, has not kept up with technology.

“It was to protect the data detailing which movies and when you rented videos from movie rental businesses such as Blockbuster from being freely accessed and disclosed,” she explained.

Now, it is being used in a manner in which it wasn’t really intended and has become a confusing area of privacy law, said Freedman, who serves as the chair of Robinson+Cole’s data privacy and security team.

In the instant case, Ellis sued Cartoon Network alleging that the disclosure of the free videos he watched through its free mobile app shouldn’t have been disclosed to a third party -- a data analytics company called Bango.

But the Eleventh Circuit disagreed and held that Ellis was not a “subscriber” and therefore not protected by the VPPA.

A similar class action lawsuit was filed against CNN over its mobile app in an Illinois federal court last year.

Edelson PC, which represented Ellis, along with the Jordan Firm LLC, did not respond to requests for comment on the court’s ruling.

From Legal Newsline: Reach Jessica Karmasek by email at jessica@legalnewsline.com.

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